R v Fox - [2011] SASC 224

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v FOX
[2011] SASC 224
Judgment of The Honourable Justice Gray
9 December 2011
MENTAL HEALTH - CONFINEMENT AND RESTRAINT OF MENTALLY ILL PERSONS AND SIMILAR ORDERS - GENERALLY
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY
Application to vary a supervision order brought pursuant to section 269P of the Criminal Law Consolidation Act 1935 (SA) – where the defendant had been found not guilty of attempted murder by reason of mental incompetence – where the defendant had previously been declared to be liable to supervision pursuant to Part 8A of the Criminal Law Consolidation Act and an order was made committing the defendant to detention with a limiting term of 13 years being fixed – the variation of the supervision order sought was that the order ceased to provide for detention but instead allowed for the defendant’s release on licence to the Grove Closed Forensic Rehabilitation Unit from where deportation proceedings could proceed to allow the defendant to be deported to the United States of America.
Held: Application dismissed – allowing the defendant to be released on licence and for deportation to occur would, without any degree of control, place the community in this State and in the United States at risk – the defendant’s release would not be consistent with the safety of the community.
Criminal Law Consolidation Act 1935 (SA) s 5F, s 269A, s 269O, s 269P, s 269Q, s 269S, s 269T, s 269V, Pt 1A and Pt 8A; International Transfer of Prisoners Act 1997 (Cth) s 4(1), s 5, s 6, s 10, s 16, s 18 and s 47, referred to.
R v Bober (No 3) (2010) 107 SASR 165; R v B, P (2007) 97 SASR 448; R v Ridings [2008] SASC 366; R v T (1999) 75 SASR 235; R v MacPherson [2010] NSWDC 132, considered.

R v FOX
[2011] SASC 224
Criminal
GRAY J.

This is an application to vary a supervision order.
Introduction
On 1 October 2008, the applicant, Jason Marcel Hamilton Fox, was found not guilty of the offence of attempted murder by reason of mental incompetence. Mr Fox was subsequently declared to be liable to supervision pursuant to Part 8A of the Criminal Law Consolidation Act 1935 (SA) and an order committing Mr Fox to detention pursuant to section 269O(1)(b)(i) was made.
On 4 December 2008, pursuant to section 269O(2) of the Act, a limiting term of 13 years was fixed. Since that date, Mr Fox has been detained pursuant to that order and his limiting term has continued to run.
On 26 May 2010, Mr Fox applied for a variation of the supervision order pursuant to section 269P of the Criminal Law Consolidation Act so that the order ceased to provide for detention but instead allowed for the release of Mr Fox on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Fox

Details

AGLC: R v Fox [2011] SASC 224
Case: [2011] SASC 224
Decision Date: 9 December 2011

CaseChat Overview and Summary

In the matter of R v Fox, the applicant sought to vary a supervision order made under the Criminal Law Consolidation Act 1935 (SA). The applicant, found not guilty of attempted murder by reason of mental incompetence, was under a supervision order that included detention with a limiting term of 13 years. The sought variation was to release the applicant on licence to a closed forensic rehabilitation unit, enabling deportation to the United States. The primary concern was whether such a release would risk the safety of the community in both South Australia and the United States.

The court examined the principles governing restrictions on a person's freedom and personal autonomy, focusing on the safety of the community. This principle was highlighted as essential in the statutory scheme, ensuring that restrictions on a person's freedom are kept to a minimum while maintaining community safety. The court considered the applicant's history of violent behaviour and psychiatric evaluations indicating that his release would likely endanger the community. The experts concluded that the applicant would present a risk if released on licence, particularly if he consumed illicit drugs and alcohol, which was deemed likely.

After reviewing the medical reports, evidence from the applicant, and input from three psychiatrists, the court determined that releasing the applicant on licence would not be consistent with the safety of the community. The applicant's history of violence and poor prognosis in abstaining from drugs and alcohol led the court to dismiss the application. The decision emphasised the need to protect both communities, ultimately concluding that the applicant should remain under the existing supervision order. The court highlighted the importance of adhering to the legislative scheme and ensuring the safety of the community, dismissing the application for variation of the supervision order.

Orders

Orders of the court

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Background

Background to the litigation

The principle referred to above - that restrictions on the defendant's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community - is a principle which I am obliged to apply in considering the within application. This principle has been described as the cornerstone of the operation of the statutory scheme.[4] Part 8A of the Act has a primary concern with the safety of the community,[5] and section 269S recognises this, while at the same time recognising the need to keep restrictions on a person’s freedom to a minimum, consistent with that safety. [4] See Advertiser Newspapers Ltd v V (2000) 117 A Crim R 141, [24]-[27]; R v Weiss (2001) 214 LSJS 357, 365-366; R v Ridings [2008] SASC 366, [16]. [5] See R v Draoui (2008) 101 SASR 267, [44]; R v Bober (No 3) (2010) 107 SASR 165.Factual and Procedural Background I heard oral evidence from three psychiatrists, reports from whom I received in accordance with section 269T of the Act. I also heard evidence from Mr Fox, and his mother, Dina Fox. Before I turn to consider in any detail the opinions expressed in the medical reports, and the oral evidence given by the psychiatrists, it is appropriate to say something more by way of background. A review of the medical reports allows the following background of Mr Fox to be summarised. Mr Fox moved to Australia from the United States with his father in early 2002. He was admitted to Glenside Hospital with a manic episode of bipolar disorder during September 2003. In June and July of 2004, Mr Fox spent further time in Glenside. In February 2005, he spent time in prison and later in James Nash House, a forensic mental health treatment facility as a result of an allegation of rape made against him, of which he was later acquitted. In October 2005, he was discharged from James Nash House and returned to prison. Between 19 January 2007 and 2 March 2007, Mr Fox committed many offences, including assaulting nursing staff, assaulting police officers, assaulting security guards and members of the public. He was found not guilty of this offending by reason of mental incompetence and was subject to a supervision order and detention, with a limiting term of 12 months being fixed. On 11 March 2007, while in Glenside, Mr Fox punched a nurse and overturned a table at a psychiatrist. He had been transferred from James Nash House to Glenside on 4 March 2007, but having been noted to have assaulted various people including staff during that time, he was eventually transferred to Yatala Labour Prison as high risk. Mr Fox was re-admitted in James Nash on 4 April 2001, and was discharged on 17 April 2007. On 12 November 2007, the incident occurred that gave rise to the charge of attempted murder the subject of the supervision order to which this application relates. The charge arose out of an incident which occurred when the defendant was residing at the Metropolitan Hotel in Grote Street, Adelaide. Acting without provocation, he inflicted multiple and severe stab wounds to one of the employees at the hotel. When a Judge of this Court was later called on to fix a limiting term pursuant to the Act, he made the following findings with respect to the attack:The attack on the victim was particularly serious. He received 16 stab wounds to his head, torso, legs and hands. The victim said that the defendant appeared to be in a trance at the time. The defendant also kicked the victim. The victim has undergone extensive medical treatment including the removal of his spleen. He has also been treated by a psychologist for Post Traumatic Stress Disorder and has not been able to return to work. At his request I have viewed the photographs of his injuries. As I have said, the attack was completely unprovoked.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

In my view, there is much to be said in the circumstances of this case for consideration to be given by those advising Mr Fox to follow through the alternative process facilitated in part by the International Transfer of Prisoners Act. This is a relevant process which has the capacity to provide full protection to the community in South Australia and Australia but also provide the protection that the authorities in the United States think appropriate to protect the community. There appears to be an international scheme provided for, which is designed to deal with prisoners – including those subject to orders of the nature of that to which Mr Fox is subject. One might expect that in the circumstances of this case the authorities may expedite the process. Conclusion The application is dismissed.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

Counsel for Mr Fox drew the Court’s attention to MacPherson, a decision of the District Court of New South Wales, where, under a similar legislative scheme to Part 8A of the Criminal Law Consolidation Act, an offender was released into the supervision of his mother to attend the Commonwealth Department of Immigration and the Consul-General of Canada to do all things necessary to obtain as rapidly as possible a visa to enable him to leave Australia and return to his home country of Canada.[9] The offender in those proceedings was a young man who had imported drugs on his person into Australia and had been found to be mentally ill at the relevant time. A key factor in the decision of Judge Finnane in that case was the apparent certain availability of appropriate treatment for the offender in Canada, and the uncertainty of such treatment while he remained in detention in Australia. However, I consider that decision to be of little assistance. Although the drug offending in that case was serious, Mr Fox in the within proceedings has such a history of violence, the considerations of the safety of the community make this case quite distinct from MacPherson. [9] R v MacPherson [2010] NSWDC 132. Consideration The Judge who dealt with Mr Fox on the charge of attempted murder and who set the limiting term, as mentioned, concluded that in light of the psychiatric report, it was clear to him that it was a case where it would be inappropriate to release the defendant on licence at that stage. The Judge went on to observe the following:The defendant’s prognosis is poor. I should also say that I am concerned about the suggestion that the defendant could be released on licence within a few months in anticipation that he would be deported to another country. It would be necessary for the Court to hear further submissions on this proposal before a decision to release on licence could be made. To that end, and in adherence to the terms of the legislative scheme, I have received reports and heard evidence; psychiatric evidence primarily directed to whether, if released on licence, Mr Fox would be a danger to the community. The experts are agreed in concluding that Mr Fox would present a risk to the community and were he to take illicit drugs and consume alcohol, which it is agreed is likely, the risk would be even greater. The Director contended that it is clear that Mr Fox is not suitable for release into the community at the present time because of the danger he represents to others. It is also clear, it was said, that Mr Fox is unlikely to comply with conditions of licence. It is far from ideal that Mr Fox, a person who has been found not guilty of the offence of attempted murder, is being detained in a maximum security division of a prison. It is difficult not to have, and indeed, express, concerns about this. However, the question which I am to consider is whether it is appropriate to release Mr Fox on licence. The savagery of the attack on the victim it not to be overlooked. Mr Fox’s outbursts of violence since being placed in detention are frequent and serious. I accept that Mr Fox’s prognosis in terms of the likelihood of him abstaining from drugs and alcohol and his willingness to participate in ongoing therapeutic help, were he to be released on licence, is poor. The evidence does not allow me to have confidence in the assurances given by Mr Fox that he would enter into a regime of treatment and follow directions and instructions.